[Federal Register Volume 88, Number 58 (Monday, March 27, 2023)]
[Notices]
[Pages 18196-18198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-06192]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-97173; File No. SR-NYSEAMER-2023-19]
Self-Regulatory Organizations; NYSE American LLC; Notice of
Filing and Immediate Effectiveness of Proposed Change To Replace the
Thirteenth Amended and Restated Operating Agreement
March 21, 2023.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on March 7, 2023, NYSE American LLC (``NYSE American'' or the
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to replace the Thirteenth Amended and
Restated Operating Agreement of the New York Stock Exchange LLC
(``NYSE'') as a rule of the Exchange with the Fourteenth Amended and
Restated Operating Agreement of the NYSE. The proposed rule change is
available on the Exchange's website at www.nyse.com, at the principal
office of the Exchange, and at the Commission's Public Reference Room.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule Change
1. Purpose
The Exchange proposes to replace the Thirteenth Amended and
Restated Operating Agreement of the NYSE (the ``Thirteenth Operating
Agreement'') as a rule of the Exchange with the Fourteenth Amended and
Restated Operating Agreement of the NYSE (the ``Fourteenth NYSE
Operating Agreement'').
NYSE has a wholly-owned subsidiary, NYSE Market (DE), Inc. (``NYSE
Market (DE), Inc.''), which owns a majority interest in NYSE Amex
Options LLC (``NYSE Amex Options''), a facility of the Exchange. The
Exchange and NYSE Market (DE) are the only members of NYSE Amex
Options.\3\ Because of NYSE's ownership of NYSE Market (DE), the
Exchange filed the Thirteenth Operating Agreement of the NYSE as a
``rule of the Exchange'' under Section 3(a)(27) of the Exchange Act.\4\
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\3\ See Exchange Act Release No. 75301 (June 25, 2015), 80 FR
37695 (July 1, 2015) (SR-NYSEMKT-2015-44) (notice of filing and
immediate effectiveness of proposed rule change amending the
members' schedule of the Amended and Restated Limited Liability
Company Agreement of NYSE Amex Options LLC).
\4\ See 15 U.S.C. 78c(a)(27); Securities Exchange Act Release
No. 87993 (January 16, 2020), 85 FR 4050 (January 23, 2020) (SR-
NYSEAMER-2020-04) (Notice of Filing and Immediate Effectiveness of
Proposed Change To Add to the Rules of the Exchange the Thirteenth
Amended and Restated Operating Agreement of the New York Stock
Exchange LLC); see also Securities Exchange Act Release Nos. 82923
(March 22, 2018), 83 FR 13161 (March 27, 2018) (SR-NYSEAmer-2018-
10); 79232 (November 3, 2016), 81 FR 78873 (November 9, 2016) (SR-
NYSEMKT2016-96); and 75984 (September 25, 2015), 80 FR 59213 October
1, 2015) (SR-NYSEMKT2015-71) (adding previous NYSE operating
agreements as rules of the Exchange).
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On February 23, 2023, the NYSE amended the Thirteenth NYSE
Operating Agreement to provide that the board of directors of its
ultimate parent, Intercontinental Exchange, Inc. (``ICE,'' and its
board of directors, the ``ICE Board'') or the compensation committee of
the ICE Board may fix the compensation of the board of directors of the
NYSE, and (b) make certain clarifying, technical and conforming
changes.\5\ Such rule change will become
[[Page 18197]]
operative 30 days from the date on which it was filed, or such shorter
time as the Commission may designate.\6\
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\5\ See SR-NYSE-2023-13 (February 23, 2023).
\6\ Id., at 10.
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Consistent with that change, the Exchange is filing to remove the
obsolete Thirteenth NYSE Operating Agreement as a ``rule of the
exchange'' under Section 3(a)(27) of the Act, and replace it with the
Fourteenth NYSE Operating Agreement as a ``rule of the exchange'' under
Section 3(a)(27) of the Act.\7\ The Exchange proposes that the rule
change become operative on the date that the rule change amending the
Thirteenth NYSE Operating Agreement becomes operative.
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\7\ 15 U.S.C. 78c(a)(27).
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The proposed rule change is a non-substantive administrative change
that does not impact the governance or ownership of the Exchange, its
facility NYSE Amex Options, or NYSE Amex Options' direct and indirect
parent entities.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Exchange Act \8\ in general, and with Section
6(b)(1) \9\ in particular, in that it enables the Exchange to be so
organized as to have the capacity to be able to carry out the purposes
of the Exchange Act and to comply, and to enforce compliance by its
exchange members and persons associated with its exchange members, with
the provisions of the Exchange Act, the rules and regulations
thereunder, and the rules of the Exchange.
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\8\ 15 U.S.C. 78f(b).
\9\ 15 U.S.C. 78f(b)(1).
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The Exchange believes that the proposed rule change would
contribute to the orderly operation of the Exchange and would enable
the Exchange to continue to be so organized as to have the capacity to
carry out the purposes of the Exchange Act and comply and enforce
compliance with the provisions of the Exchange Act by its members and
persons associated with its members because, by removing the obsolete
Thirteenth NYSE Operating Agreement and making the Fourteenth NYSE
Operating Agreement a rule of the Exchange, the Exchange would be
ensuring that its rules remain consistent with the NYSE operating
agreement in effect.
The Exchange notes that, as with the Thirteenth NYSE Operating
Agreement, it would be required to file any changes to the Fourteenth
NYSE Operating Agreement with the Commission as a proposed rule
change.\10\ In addition, the Exchange believes that the proposed
changes are consistent with and will facilitate an ownership structure
of the Exchange's facility NYSE Amex Options that will provide the
Commission with appropriate oversight tools to ensure that the
Commission will have the ability to enforce the Exchange Act with
respect to NYSE Amex Options and its direct and indirect parent
entities.
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\10\ The Exchange notes that any amendment to the Fourteenth
NYSE Operating Agreement would require that NYSE file a proposed
rule change with the Commission.
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For similar reasons, the Exchange also believes that the proposed
rule change is consistent with Section 6(b)(5) of the Exchange Act \11\
because the proposed rule change would be consistent with and
facilitate a governance and regulatory structure that it is designed to
prevent fraudulent and manipulative acts and practices, to promote just
and equitable principles of trade, to foster cooperation and
coordination with persons engaged in facilitating transactions in
securities, to remove impediments to and perfect the mechanism of a
free and open market and a national market system and, in general, to
protect investors and the public interest. The Exchange believes that
removing the Thirteenth NYSE Operating Agreement from its rules and
adding the Fourteenth NYSE Operating Agreement would remove impediments
to the operation of the Exchange by ensuring that its rules remain
consistent with the NYSE operating agreement in effect. The Exchange
notes that, as with the Thirteenth NYSE Operating Agreement, no
amendment to the Fourteenth NYSE Operating Agreement could be made
without the Exchange filing a proposed rule change with the Commission.
For the same reasons, the proposed rule change is also designed to
protect investors as well as the public interest.
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\11\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Exchange Act. The proposed rule
change is not designed to address any competitive issue but rather is
concerned solely with ensuring that the Commission will have the
ability to enforce the Exchange Act with respect to NYSE Amex Options
and its direct and indirect parent entities.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
No written comments were solicited or [sic.]
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
The proposed rule change has become effective pursuant to Section
19(b)(3)(A) of the Act \12\ and Rule 19b-4(f)(3) \13\ thereunder in
that the proposed rule change is concerned solely with the
administration of the Exchange.
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\12\ 15 U.S.C. 78s(b)(3)(A).
\13\ 17 CFR 240.19b-4(f)(3).
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At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may suspend such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act. If the Commission takes such
action, the Commission shall institute proceedings under Section
19(b)(2)(B) \14\ of the Act to determine whether the proposed rule
change should be approved or disapproved.
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\14\ 15 U.S.C. 78s(b)(2)(B).
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IV. Solicitation of Comments
Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
Send an email to [email protected]. Please include
File Number SR-NYSEAMER-2023-19 on the subject line.
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEAMER-2023-19. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent
[[Page 18198]]
amendments, all written statements with respect to the proposed rule
change that are filed with the Commission, and all written
communications relating to the proposed rule change between the
Commission and any person, other than those that may be withheld from
the public in accordance with the provisions of 5 U.S.C. 552, will be
available for website viewing and printing in the Commission's Public
Reference Room, 100 F Street NE, Washington, DC 20549 on official
business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of
the filing also will be available for inspection and copying at the
principal office of the Exchange.
All comments received will be posted without change. Persons
submitting comments are cautioned that we do not redact or edit
personal identifying information from comment submissions. You should
submit only information that you wish to make available publicly.
All submissions should refer to File Number SR-NYSEAMER-2023-19 and
should be submitted on or before April 17, 2023.
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\15\ 17 CFR 200.30-3(a)(12).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-06192 Filed 3-24-23; 8:45 am]
BILLING CODE 8011-01-P